Delivered
by Honourable Mrs Justice K. J. GUNI on the 22nd day of November,
2000.

The
applicant herein was an employee of the respondent company (SECURITY
LESOTHO (pty) LTD). He was first engaged by the said company
on the
29th August 1985. Nothing is said about the position or rank held by
him on his entry into the service of the said company.
His services
were terminated on the 14th January 1994 rather abruptly after a
series of disciplinary proceedings had been instituted
against him.
It would therefore appear that he had worked for the

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respondent company for a period of approximately eight (8) years (7)
seven months.

It is
apparent that over those years, he worked his way in the ranks of the
said company to a position of a SECURITY OFFICER which
appears to be
the rank held by him just before his dismissal from the respondent
company. In that said capacity, the applicant
must have been
entrusted with a greater responsibility concerning security and
control at the respondent company. It would appear
from the facts
gleaned from the papers filed of record, that this applicant was in
charge in the control section of the respondent
company. This
impression is created by the fact that at the conclusion of the
misconduct proceedings, conducted against this applicant,
on the 10th
December 1993, the recommendation for his removal from the control
section, was made. At that stage, he was also given
a final warning
for his misconduct. At the first appearance before the disciplinary
committee, he had been charged with neglect
of duty. The cash left in
his custody had disappeared. He had claimed that the disappearance
was caused by his neglect of his duty
because he should have taken
good care of the money which was in his custody and under his
immediate control.

When he
appeared again before the same Disciplinary Committee, this time,
facing

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a charge
of misconduct involving another disappearance of cash left in his
care and custody, there was no full blown misconduct
inquiry
proceedings as before [See Annexure "C" page 1 of the
record]. On the 10th December 1993, this applicant was
charged with
the neglect of his duty instead of misappropriation of that cash. It
was being alleged, that he was responsible for
the disappearance of
the money left in the control room. This is the room where he was in
charge. This applicant seems to have
no power to resist any
temptation to help himself with any amount of money whenever an
opportunity arises. On two separate occasions
small amounts of money
which was under his immediate care and custody disappeared.

On 15th
December 1993, this applicant was charged with an act of misconduct
whose particulars show that he unlawfully borrowed himself
some money
which had been collected from his colleagues as contributions to
assist the bereaved family of a deceased colleague.
That cash which
this applicant took is alleged to belong to the deceased Ramarou.
[See Annexure 'D' Page 24 of the record]. The
technical question of
whether or not the applicant could or did steal from the deceased who
may not lay a claim against him, does
not fall for determination
presently. The applicant appears to claim that he borrowed the said
cash from one Pokola to whom he
repaid the same. The applicant's
explanation is belated

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because
at the hearing, there was no full blown misconduct inquiry regarding
the disappearance of those contributions collected
to assist the
family of the deceased Ramarou because this applicant admitted
stealing it. At the hearing by the disciplinary committee
this
applicant raised no such defence or any defence at all. It is the
presence of Mr. Pokola, in the disciplinary committee, which
this
applicant now uses as a ground to attack the proprietary of the
decision reached by the said disciplinary committee. The decision
that the applicant stole the said money from the deceased was that of
the applicant himself. The committee merely made the recommendations
following upon that admission. The proprietary of charging the
applicant with stealing that money from the deceased person while
the
same was in his own care and under his own control, does not fall for
determination at this stage. At this juncture, this court
has been
specifically requested to determine a question of law first and
separately in terms of Rule 32(7) High Court Rules, Legal
Notice N0.9
of 1980. The relevant portion of the said rule reads as follows:

"(7)
If it appears to the court mero motu or on the application of any
party that there is any pending action a question of
law or fact
which it would be convenient to decide either before any evidence is
led or separately from any other question the
court may make an order
directing that the trial of such question in such manner as it may
deem fit, and may order that all further
proceedings be stayed until
such question is disposed of.

The
parties indicated to me that they have agreed that a court order be
made that

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there is
a question of law or fact which must be determined first and
separately before the determination of the main application.
There
has been three peripheral issues determined separately and
individually by this court in this case. In the first instance,
this
matter was before my brother Judge Mofolo. The only question decided,
then was what appeared to be a plea in bar. This plea
was to the
effect that this applicant was not entitled to bring for review
before this court, the proceedings which took place
more than two
years ago. That plea of prescription failed.

The same
matter was now heard the second time by Honourable Judge Lehohla. The
parties had agreed that an order of court be made,
directing that a
question of law or fact be determined first and separately before the
court could consider the determination of
the application on its
merits. An order to that effect by their agreement was, accordingly
made by Lehohla J. The question of law
which this court is called
upon to determine first and separately is whether or not this
applicant is entitled to the relief sought,
considering the prayers
made and the facts which are in the common cause. The applicant in
his prayers seeks the review of the
proceedings of the disciplinary
committee, instituted and conducted against him on the 10th December
1993 and on the 15th December
1993. The facts which are in the common
cause are that the applicant brought the matter to the court for

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review
after the expiration of more than two years without showing what he
did in that period to mitigate his loss if he did anything
It is
argued that this applicant brought this application for the review of
the decision of the disciplinary committee, after the
expiration of a
period of approximately two years. The applicant does not mention in
his papers what he has been doing for the
period of two years since
his dismissal from the respondent company. He may have been employed
or unemployed. The parties agree,
that the review, correction and
setting aside of the disciplinary committee's decision has a
necessary consequence of restoring
the terminated relationship of the
employer and employee between the parties, without the specific
request of reinstatement made
by the applicant. The applicant in this
matter has two available remedies. BAXTER - ADMIN . LAW; Page 673 He
could have specifically
asked for reinstatement or payment of
damages. Where a contract of employment is terminated in breach of
the said contract, the
aggrieved party is entitled to sue for
reinstatement or payment of damages. This is a common practice. This
applicant has not specifically
asked for any of the available
remedies.

The power
to review, correct and set aside is a discretionary one. This
discretion

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must be
exercised judicially after weighing properly all the surrounding
circumstances of the case. Wolgroeiers Apslaers (Edms)
Bpk v
Hunisipaliteit Van Kaapstad 1978 (!) SA 13 (A) 38 -9. It is important
to allege in the affidavit all the material facts.
In this case it is
very material that the court is given sufficient facts regarding what
exactly has been happening to this applicant
since the termination of
his employment two years ago. The parties have agreed that the
reinstatement of this applicant is a necessary
consequence of the
setting aside of the decision of the disciplinary committee. The
applicant, would therefore be reinstated after
six years [from 1994
to 2000] and be entitled to his benefits without asking this court
specifically to order the reinstatement
and payment of the said
benefits. There are no facts alleged and discussed, which could
possibly justify the exercise of the court's
discretion in favour of
this applicant. It is argued and I feel properly so, by Ms Thabane
for respondent, that this may prejudice
the respondent because the
applicant, may have, as required by the law, mitigated his loss of
the said benefits during this period
of six years. Reinstatement in
those circumstances can not be the restoration of the status quo. The
applicant should have elected
either to be reinstated or paid damages
and set out properly the grounds to support his chosen remedy. This
is the usual practice.
He has done neither.

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In the
exercise of its discretion, the court is entitled to withhold the
remedy sought, when from the facts alleged it is obvious
that the
remedy sought is not a suitable one. BAXTER - ADMIN. LAW; Page 673
Without the sufficient facts, this court cannot exercise
its
discretion judicially to review, correct and set aside the decision
of the disciplinary committee of the respondent. In other
words, the
applicant is not entitled to a remedy sought, particularly when it is
going to bring about what the applicant has not
specifically asked
for. Therefore in this circumstances the question which this court
was required to determine first and separately,
that is, whether or
not the applicant is entitled to the remedy sought in the light of
his prayers and the facts in the common
cause, is answered in a
negative.